R. v. Levert (G.), (2001) 150 O.A.C. 208 (CA)

• Judge: Catzman, Rosenberg and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 04, 2001
• Jurisdiction: Ontario
• Citations: (2001), 150 O.A.C. 208 (CA);2001 CanLII 8606 (ON CA);2001 CanLII 8606 (NS CA);159 CCC (3d) 71;[2001] OJ No 3907 (QL);150 OAC 208;51 WCB (2d) 289

R. v. Levert (G.) (2001), 150 O.A.C. 208 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. OC.016

Her Majesty the Queen (respondent) v. Gerald Levert (appellant)

(C35884)

Indexed As: R. v. Levert (G.)

Ontario Court of Appeal

Catzman, Rosenberg and Moldaver, JJ.A.

October 9, 2001.

Summary:

The accused was convicted of sexual interference with a minor. He was sentenced to six months' imprisonment and two years' probation. He appealed his conviction and sentence.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - The accused was convicted of sexual interference with a minor - The minor, who had various disabilities including dyslexia and Attention Deficit Disorder, could not read or write, could not tell time and had a bad memory, alleged that on two occasions the accused put his hand on his penis and fondled it - The accused appealed his conviction - He argued, inter alia, that misconduct by Crown counsel in cross-examining the accused and in his jury address tainted the trial and caused prejudice to the accused's right to a fair trial - The Ontario Court of Appeal rejected this argument - Of the various Crown allegations, those concerning the "perfect victim" (i.e., a young boy with various disabilities and a bad memory) were improper - Nonetheless, the conduct was not so improper as to bring the administration of justice into disrepute, nor was there a danger of a miscarriage of justice resulting from them - See paragraphs 22 to 23.

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - The accused was convicted of sexual interference with a minor - The minor, who had various disabilities including dyslexia and Attention Deficit Disorder, could not read or write, could not tell time and had a bad memory, alleged that on two occasions the accused put his hand on his penis and fondled it - The accused appealed his conviction - He argued, inter alia, that Crown counsel's cross-examination and closing address regarding the accused's calm demeanour when confronted with the allegations amounted to misconduct and caused prejudice to the accused's right to a fair trial - The Ontario Court of Appeal rejected this argument - Although the evidence was prejudicial, and the trial judge could have exercised his discretion to exclude it, its admission and use did not impair a fair trial where it received only brief attention and where it was refuted by the defence - See paragraphs 24 to 28.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - [See both Criminal Law - Topic 131 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused was convicted of sexual interference with a minor - The minor, who had various disabilities including dyslexia and Attention Deficit Disorder, could not read or write, could not tell time and had a bad memory, alleged that on two occasions the accused put his hand on his penis and fondled it - The accused appealed his conviction - He argued, inter alia, that the verdict was unreasonable - Particularly, the accused submitted that because of the complainant's disabilities, his evidence was so unreliable that a conviction based on it could not stand - The Ontario Court of Appeal rejected this argument - The accused's attack on the evidence was based upon unsubstantiated preconceptions about children with disabilities - "There is nothing to indicate that with all of his problems, mostly learning disabilities, the complainant was unable to accurately recall that the [accused] had abused him" - See paragraphs 1 to 18.

Criminal Law - Topic 4961

Appeals - Indictable offences - New trials - Grounds - Abusive or improper cross-examination by Crown - [See both Criminal Law - Topic 131 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See second Criminal Law - Topic 131 ].

Criminal Law - Topic 5406

Evidence and witnesses - Witnesses - Credibility - Physical and mental condition - [See Criminal Law - Topic 4865 ].

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper questions - What constitute - [See both Criminal Law - Topic 131 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused was convicted of sexual interference - The charge resulted from two incidents involving a minor - The accused was sentenced to six months' imprisonment and two years' probation - The accused appealed - He argued, inter alia, that the sentence should be varied to a conditional sentence - At the time of trial the accused was 51 years old, took care of his mother and managed her rental units - He had no criminal record and had been a school teacher for almost 31 years before he was suspended when the charges were laid - The Ontario Court of Appeal dismissed this ground of appeal where the sentence was not unfit - Although the trial judge erred by giving too much weight to the accused's lack of remorse, the effect of the error was inconsequential - Particularly, the major factors for the trial judge's rejecting a conditional sentence were the seriousness of the conduct and the high moral culpability of the accused.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. R.W. (1992), 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134 (S.C.C.), refd to. [para. 14].

R. v. Clarke (H.E.) (1998), 112 O.A.C. 233; 129 C.C.C.(3d) 1 (C.A.), refd to. [para. 20].

R. v. McMillan (1975), 23 C.C.C.(2d) 160 (Ont. C.A.), affd. (1977), 15 N.R. 20; 33 C.C.C.(2d) 160 (S.C.C.), refd to. [para. 21].

R. v. Baron (1976), 31 C.C.C.(2d) 525; 14 O.R.(2d) 173 (C.A.), refd to. [para. 25].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 28, footnote 3].

Boucher v. R., [1955] S.C.R. 16; 110 C.C.C. 263, refd to. [para. 32].

R. v. R. (1994), 74 O.A.C. 363; 94 C.C.C.(3d) 168 (C.A.), refd to. [para. 36].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 40].

Authors and Works Noticed:

Kaufman Report - see Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998).

Ontario, Attorney General, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), vol. 2, pp. 1142 to 1150 [para. 27].

Palmer, A., "Guilt and Consciousness of Guilt: The Use of Lies, Flight and other Guilty Behaviour' in the Investigation and Prosecution of Crime" (1977), 21 Melbourne University Law Review 95 [para. 27, footnote 2].

Counsel:

Murray H. Shore, for the appellant;

Laura Hodgson, for the respondent.

This appeal was heard on September 4, 2001, before Catzman, Rosenberg and Moldaver, JJ.A., of the Ontario Court of Appeal. On October 9, 2001, Rosenberg, J.A., delivered the following judgment for the Court of Appeal.